USCA4 Appeal: 17-2002 Doc: 87 Filed: 01/07/2019 Pg: 1 of 46 PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 17-2002 BRIAN DAVISON, v. Plaintiff - Appellee, PHYLLIS RANDALL, In her official and individual capacity, and Defendant - Appellant, LOUDOUN COUNTY BOARD OF SUPERVISORS, In their official and individual capacities; LEO ROGERS, In his official capacity; TONY BUFFINGTON, In his official capacity; RON MEYER, In his official capacity; GEARY HIGGINS, In his official capacity, ------------------------------ Defendants. LOCAL GOVERNMENT ATTORNEYS OF VIRGINIA, INC.; INTERNATIONAL MUNICIPAL LAWYERS ASSOCIATION; VIRGINIA ASSOCIATION OF COUNTIES; VIRGINIA MUNICIPAL LEAGUE, Amici Supporting Appellant, AMERICAN CIVIL LIBERTIES UNION; ACLU OF VIRGINIA; ACLU OF MARYLAND; ACLU OF NORTH CAROLINA; ACLU OF SOUTH CAROLINA; ACLU OF WEST VIRGINIA, Amici Supporting Appellee.
USCA4 Appeal: 17-2002 Doc: 87 Filed: 01/07/2019 Pg: 2 of 46 No. 17-2003 BRIAN C. DAVISON, v. Plaintiff - Appellant, PHYLLIS RANDALL, In her official and individual capacity; LOUDOUN COUNTY BOARD OF SUPERVISORS, In their official and individual capacities, and Defendants - Appellees, LEO ROGERS, In his official capacity; TONY BUFFINGTON, In his official capacity; RON MEYER, In his official capacity; GEARY HIGGINS, In his official capacity, Defendants. Appeals from the United States District Court for the Eastern District of Virginia, at Alexandria. James C. Cacheris, Senior District Judge. (1:16-cv-00932-JCC-IDD) Argued: September 26, 2018 Decided: January 7, 2019 Before KEENAN, WYNN, and HARRIS, Circuit Judges. Affirmed by published opinion. Judge Wynn wrote the opinion, in which Judge Keenan and Judge Harris concurred. Judge Keenan wrote a separate concurring opinion. ARGUED: Scott E. Gant, BOIES SCHILLER FLEXNER, LLP, Washington, D.C.; Leo P. Rogers, LOUDON COUNTY ATTORNEY, Leesburg, Virginia, for Appellant/Cross- Appellee. Katherine A. Fallow, KNIGHT FIRST AMENDMENT INSTITUTE AT 2
USCA4 Appeal: 17-2002 Doc: 87 Filed: 01/07/2019 Pg: 3 of 46 COLUMBIA UNIVERSITY, New York, New York, for Appellee/Cross-Appellant. ON BRIEF: Aaron E. Nathan, BOIES SCHILLER FLEXNER LLP, Washington, D.C., for Appellant/Cross-Appellee. Jameel Jaffer, Carrie DeCell, KNIGHT FIRST AMENDMENT INSTITUTE AT COLUMBIA UNIVERSITY, New York, New York, for Appellee/Cross-Appellant. Vishal Agraharkar, AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF VIRGINIA, Richmond, Virginia; Esha Bhandari, Vera Eidelman, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, New York, New York; Susan K. Dunn, ACLU OF SC FOUNDATION, INC., Charleston, South Carolina; Christopher Brook, AMERICAN CIVIL LIBERTIES UNION OF NORTH CAROLINA LEGAL FOUNDATION, Raleigh, North Carolina; Deborah A. Jeon, ACLU FOUNDATION OF MARYLAND, Baltimore, Maryland; Jennifer D. Oliva, ACLU OF WEST VIRGINIA FOUNDATION, Charleston, West Virginia, for Amici American Civil Liberties Union, ACLU of Virginia, ACLU of Maryland, ACLU of North Carolina, ACLU of South Carolina, and ACLU of West Virginia. Joshua A. Geltzer, Douglas Letter, Amy L. Marshak, Mary B. McCord, INSTITUTE FOR CONSTITUTIONAL ADVOCACY AND PROTECTION GEORGETOWN UNIVERSITY LAW CENTER, Washington, D.C.; Kwaku A. Akowuah, Christopher C. Fonzone, Kate Heinzelman, SIDLEY AUSTIN LLP, Washington, D.C., for Amici Curiae First Amendment Legal Scholars. 3
USCA4 Appeal: 17-2002 Doc: 87 Filed: 01/07/2019 Pg: 4 of 46 WYNN, Circuit Judge: Phyllis Randall, Chair of the Loudoun County, Virginia, Board of Supervisors (the Loudoun Board ), brings this appeal, arguing that the district court erred in concluding that she violated the First Amendment rights of one of her constituents, Brian Davison, when she banned Davison from the Chair Phyllis J. Randall Facebook page she administered. In a cross appeal, Davison principally argues that the district court erred in dismissing his procedural due process claim premised on the ban. For the reasons that follow, we affirm. I. A. Randall has chaired the Loudoun County Board of Supervisors since January 1, 2016. The day before she was sworn in as chair, Randall created the Chair Phyllis J. Randall Facebook Page (the Chair s Facebook Page ). According to Facebook, Inc., unlike personal Facebook profiles, which are for non-commercial use and represent individual people, Facebook Pages like the Chair s Facebook Page help businesses, organizations, and brands share their stories and connect with people. J.A. 403. Pages are managed by people who have personal profiles, the company explains. J.A. 403. In addition to the Chair s Facebook Page, Randall created and maintained two other Facebook profiles: a personal profile and a Page devoted to her campaign. Randall classified her campaign page as belonging to a politician and used no designation for her personal profile, but she designated the Chair s Facebook Page as a governmental official page. J.A. 209 10. 4
USCA4 Appeal: 17-2002 Doc: 87 Filed: 01/07/2019 Pg: 5 of 46 Randall and her Chief of Staff, Jeanine Arnett, share administrative control over the Chair s Facebook Page, although Randall almost exclusively controls the page s content. On her campaign page, Randall characterized the Chair s Facebook Page as her county Facebook page stating: I really want to hear from ANY Loudoun citizen on ANY issues, request, criticism, complement or just your thoughts. However, I really try to keep back and forth conversations (as opposed to one time information items such as road closures) on my county Facebook page (Chair Phyllis J. Randall) or County email (Phyllis.randall@loudoun.gov). Having back and forth constituent conversations are Foiable ([Freedom of Information Act]) so if you could reach out to me on these mediums that would be appreciated. J.A. 455 (emphasis added). The Chair s Facebook Page includes three columns. The left column, which is topped by a picture of Randall, includes several links to allow visitors to quickly navigate the contents of the Chair s Facebook Page. The middle column, which is organized in reverse chronological order similar to a personal profile s News Feed, is composed of posts by Randall and comments by Facebook users on those posts. Randall s posts are almost always directed to Loudoun, see, e.g., J.A. 408 10, and deal with numerous aspects of Randall s official responsibilities. For example, Randall used the Chair s Facebook Page to notify the public about upcoming Loudoun Board meetings, and the subjects to be discussed during those meetings. Randall also used the page to inform Loudoun County residents about significant public safety issues. See, e.g., J.A. 412 (stating that Loudoun Board had been informed by the Sheriff s Office about the non-legitimate threat made on social 5
USCA4 Appeal: 17-2002 Doc: 87 Filed: 01/07/2019 Pg: 6 of 46 media toward Dominion High School in Sterling ); J.A. 418 (reporting that she ha[d] been briefed regarding the student falling from the water tower this morning and advising the public to not make any assumptions but wait for information ). And Randall used the Chair s Facebook Page to coordinate Loudoun County s response to a large snow storm, including to communicate with constituents regarding which municipal streets required plowing. Other posts by Randall to the Chair s Facebook Page invited members of the public to apply to participate on a public commission and to participate in public meetings regarding key issues facing Loudoun County residents, such as revised flood plain zones and the Zika virus. Randall also authored posts regarding a variety of trips and meetings she had taken in furtherance of Loudoun County business. E.g., J.A. 408 (reporting that Randall address[ed] the (county) role in Treatment at a regional conference on Opioid and Substance Abuse Addiction ); J.A. 410 (stating that Randall represented Loudoun County at its annual credit rating presentation in New York); J.A. 415 (informing public of trip to Loudoun s Sister City in Germany); J.A. 426 (reporting that Randall was in Richmond lobbying for [Loudoun County s] legislative program ). Finally, Randall used the page to advise the public regarding official actions taken by the Loudoun Board. E.g., J.A. 433 (reporting that Loudoun Board approved funding for new breathing apparatus for our Loudoun Firefighters ); J.A. 442 (listing several proclamations of note by the Loudoun Board); J.A. 443 (informing public that Loudoun Board adopted a budget for Fiscal Year 2017 totaling $2.46 billion for the general county government and schools ). Although Randall s posts on the Chair s 6
USCA4 Appeal: 17-2002 Doc: 87 Filed: 01/07/2019 Pg: 7 of 46 Facebook Page principally addressed her official responsibilities, a few posts addressed topics less closely related to her official activities such as her affection for the German language or pride in becoming an organ donor. Members of the public, including Davison, liked 1 or commented on several of Randall s posts on the Chair s Facebook Page. Each like or comment identified the name of the personal profile or Page of the authoring party. Many of the comments thanked Randall and the Loudoun Board for representing the public s interests. Other posts by members of the public offered feedback on various issues faced by Randall and the Loudoun Board. E.g., J.A. 427 (stating that [p]utting recreation in a flood plain is not a good idea ); J.A. 448 (stating that more needs to be done with the explosion of Lyme disease in Loudoun ). And other comments dealt with constituent-specific issues. E.g., J.A. 415 (constituent stating, in response to post by Randall regarding visit to Loudoun County s Sister City in Germany, that constituent s daughter is interested in exchange programs ); J.A. 454 (stating that there [we]re no [snow] plows to be seen in a particular neighborhood). Finally, several comments, including a number authored by Davison, criticized the Loudoun Board, generally, and Randall, in particular, for actions taken in their official capacities. E.g., J.A. 429 30 (Davison criticizing public school system budget and expenditures); J.A. 438 39 (member of public criticizing governmental entity s inspection of farm, claiming it failed to uncover animal abuse); 1 Liking on Facebook is a way for Facebook users to share information with each other. Bland v. Roberts, 730 F.3d 368, 385 (4th Cir. 2013). 7
USCA4 Appeal: 17-2002 Doc: 87 Filed: 01/07/2019 Pg: 8 of 46 J.A. 449 (Davison characterizing question he posed at Loudoun Board and Loudoun School Board joint town hall). On some occasions, Randall responded to these comments or criticisms. In the right column of the Chair s Facebook Page, the page is identified as a government official page. It provides contact information for Randall s county office, including her office telephone number, Randall s official county email address, and the internet address for the official county website. The column also identifies how many and which Facebook personal profiles and Pages like and follow the Chair s Facebook Page. 2 And the column includes a list of personal profiles and Pages liked by the Chair s Facebook Page. Randall publicized the Chair s Facebook Page in her official Chair Phyllis J. Randall newsletter, which is prepared by County employees, hosted on the County s website, and distributed to Loudoun citizens using Randall s official county email account. The newsletter ends with the words STAY CONNECTED and a Facebook icon that hyperlinks to the Chair s Facebook Page. Randall also highlighted the Chair s Facebook Page in Winter Storm Information notices emailed from her official county account to Loudoun County residents, advising recipients to Visit [the Chair s Facebook Page] for Updates. J.A. 341 42, 344. 2 According to Facebook, [l]iking a Facebook Page means you are connecting to that Page. When you connect to a Page, it will appear in [a user s] timeline and [the user] will appear on the page as a person who likes that Page. The Page will also be able to post content into [the user s] News Feed. Bland, 730 F.3d at 385 (internal quotation marks omitted). 8
USCA4 Appeal: 17-2002 Doc: 87 Filed: 01/07/2019 Pg: 9 of 46 Davison, an outspoken resident of Loudoun County, apparently largely focuses his civic engagement and expression on the funding and... management of public schools. J.A. 95. To that end, he has repeatedly expressed concern about School Board members failing to disclose personal conflicts as required by law before voting on financial transactions before the School Board. J.A. 96. On February 3, 2016, Davison attended a Loudoun town hall meeting that included the Loudoun County School Board and Randall. At the meeting, Davison submitted a question implying that certain School Board members had acted unethically in approving financial transactions. Randall volunteered to answer the question but characterized it as a set-up question that she did not appreciate. J.A. 103. Shortly after Randall answered the question and while the town hall meeting was still ongoing Davison posted a message on Twitter in which he tagged Randall: @ChairRandall set up question? You might want to strictly follow FOIA and the COIA as well. J.A. 470 71. Later that evening, Randall posted about the town hall meeting on the Chair s Facebook Page, describing what was generally discussed at the meeting. J.A. 268. In response, Davison then used one of the Facebook Pages he manages through his personal Facebook profile Virginia SGP, which Davison frequently uses to post political commentary to comment on Randall s post about the town hall meeting. Although neither Davison nor Randall remember the precise content of Davison s comment, Randall testified that it contained accusations regarding School Board members and their families putative conflicts of interest related to municipal financial transactions, 9
USCA4 Appeal: 17-2002 Doc: 87 Filed: 01/07/2019 Pg: 10 of 46 suggesting, in Randall s opinion, that School Board members had been taking kickback money. See J.A. 268 69, 289 90. Randall stated that she had no idea if any of th[e] [accusations] w[ere] correct, but she determined that the post was probably not something [she] want[ed] to leave on the Chair s Facebook Page. J.A. 269. Randall then deleted the whole post, including her original post regarding the town hall meeting, Davison s comment and replies thereto, and all other public comments. J.A. 269. Randall also banned Davison s Virginia SGP Page from the Chair s Facebook Page, which precluded Davison from using his Virginia SGP Page from commenting on the Chair s Facebook Page. The next morning, about twelve hours later, Randall reconsidered her actions and unbanned Davison s Virginia SGP Page. B. On November 3, 2016, Davison filed an amended complaint seeking declaratory and injunctive relief under 42 U.S.C. 1983 against Randall, in both her official and individual capacities, and the Loudoun Board alleging that the banning of [Davison] from commenting on [the Chair s Facebook Page] is viewpoint discrimination. J.A. 31. Davison further alleged that the ban violated his procedural due process rights protected by the Fourteenth Amendment because Randall blocked Davison s constitutionally protected speech on [the Chair s Facebook Page], a limited public forum, without prior notice and without providing an opportunity for appealing [her] decision. J.A. 32. Davison did not challenge Randall s deletion of his post. On March 6, 2017 four days before the close of discovery and approximately two months before trial Davison moved for leave to amend his complaint a second time 10
USCA4 Appeal: 17-2002 Doc: 87 Filed: 01/07/2019 Pg: 11 of 46 to add claims under the Virginia Constitution that were materially indistinguishable from his previously asserted First and Fourteenth Amendment claims premised on the ban, as well as a separate First Amendment claim against the Loudoun Board. Davison s proposed new First Amendment claim theorized that the County violated his free speech rights by choosing to use Facebook Pages as public forums, when Facebook allows private users to restrict access to their posts, including posts to any Page a municipality designates as a limited public forum. Pl. s Mem. in Supp. of Mot. for Leave to File Second Am. Compl. 3 9, Davison v. Loudoun County Bd. of Supervisors, 16-cv-932- JCC-IDD, ECF No. 68. The district court referred the motion to a magistrate judge, who granted leave to amend regarding the claims under the Virginia Constitution but denied leave as to the new First Amendment claim against the Loudoun Board. Davison lodged objections to the magistrate judge s partial denial of leave to amend, which objections the district court overruled. Around the same time, Randall and the Loudoun Board each moved for summary judgment. The Loudoun Board asserted that the municipality could not be held liable for Randall s banning of Davison from the Chair s Facebook Page because the Chair s Facebook Page was not an official municipal page and because Randall, not the Loudoun Board as a body, was solely responsible for creating and administering the Chair s Facebook Page. The Loudoun Board and Randall further asserted that the Chair s Facebook Page did not amount to a public forum, and therefore Randall s ban of Davison s Virginia SGP Page did not implicate his free speech or procedural due process rights. Finally, Randall asserted that she was entitled to qualified immunity. 11
USCA4 Appeal: 17-2002 Doc: 87 Filed: 01/07/2019 Pg: 12 of 46 On May 10, 2017, the district court granted summary judgment in favor of the Loudoun Board, dismissing it from the suit. But as to Randall, the district court concluded that Davison s evidence established a material dispute of fact as to whether the Chair s Facebook Page amounted to a limited public forum and whether Randall, in her individual capacity, acted under color of state law in banning Davison from the Chair s Facebook Page. Davison v. Loudoun Cty. Bd. of Supervisors, No. 1:16-cv-932, 2017 WL 1929406, at *6 9 (E.D. Va. May 10, 2017). The district court also rejected Randall s qualified immunity argument. Id. at *8. Following a one-day bench trial of Davison s claims against Randall, the district court issued a memorandum opinion and order awarding judgment in Davison s favor on his claims under the First Amendment and the analogous free speech provision in the Virginia Constitution. See Davison v. Loudoun Cty. Bd. of Supervisors, 267 F. Supp. 3d 702, 714 18 (E.D. Va. 2017). The district court further entered judgment in Randall s favor on Davison s federal and state procedural due process claims. Id. at 719 22. As to remedy, the district court denied Davison s request for injunctive relief but granted Davison s request for a declaratory judgment to resolve the uncertainty regarding the legal status of [the Chair s Facebook Page]. Id. at 723. Randall and Davison, respectively, filed this appeal and cross appeal. II. On appeal, Randall argues that (A) Davison failed to establish standing to obtain prospective declaratory relief based on Randall s alleged First Amendment violation; (B) the district court erred in concluding that Randall acted under color of state law when 12
USCA4 Appeal: 17-2002 Doc: 87 Filed: 01/07/2019 Pg: 13 of 46 she banned Davison s Virginia SGP Page from the Chair s Facebook Page; and (C) the district court erred in concluding that Randall s banning of Davison s Virginia SGP Page violated the First Amendment. A. Notwithstanding that she did not challenge Davison s standing below and therefore that the district court never squarely addressed his standing Randall now argues that Davison failed to establish Article III standing to support the district court s award of prospective declaratory relief. Even though Defendants did not challenge Davison s standing below, standing to sue is a jurisdictional issue of constitutional dimensions, and it may be raised and addressed for the first time on appeal. Hodges v. Abraham, 300 F.3d 432, 443 (4th Cir. 2002). This Court reviews de novo whether a district court possessed jurisdiction in a declaratory judgment proceeding. Volvo Const. Equip. N. Am., Inc. v. CLM Equip. Co., Inc., 386 F.3d 581, 591 (4th Cir. 2004). To establish Article III standing, a plaintiff must prove that: 1) he or she suffered an injury in fact that is concrete and particularized, and is actual or imminent; 2) the injury is fairly traceable to the challenged action of the defendant; and 3) the injury likely will be redressed by a favorable decision. Friends of the Earth, Inc. v. Gaston Copper Recycling Corp., 629 F.3d 387, 396 (4th Cir. 2011). Randall does not dispute that any injury Davison suffered is fairly traceable to her decision to ban him from the Chair s Facebook Page. Nor does Randall dispute that any such injury would be remedied by a favorable decision. Rather, Randall claims that Davison failed to adduce evidence 13
USCA4 Appeal: 17-2002 Doc: 87 Filed: 01/07/2019 Pg: 14 of 46 establishing that he suffered an injury in fact sufficient to support prospective declaratory relief. Injury in fact is an invasion of a legally protected interest that is concrete and particularized and actual or imminent, not conjectural or hypothetical. Kenny v. Wilson, 885 F.3d 280, 287 (4th Cir. 2018) (quoting Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1548 (2016)). Because [p]ast exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief... if unaccompanied by any continuing, present adverse effects, a plaintiff seeking declaratory or injunctive relief... must establish an ongoing or future injury in fact. Id. at 287 88 (quoting O Shea v. Littleton, 414 U.S. 488, 495 96 (1974)). Significantly, this Court along with several other circuits has held that standing requirements are somewhat relaxed in First Amendment cases, particularly regarding the injury-in-fact requirement. Cooksey v. Futrell, 721 F.3d 226, 235 (4th Cir. 2013) (collecting cases). In Kenny v. Wilson, 885 F.3d 280 (4th Cir. 2018), this Court addressed what evidence a plaintiff seeking relief under the First Amendment, like Davison, must put forward to establish a future injury-in-fact adequate to confer Article III standing to obtain prospective declaratory relief. In Kenny, several high school students lodged First Amendment challenges to two South Carolina disorderly conduct statutes. Id. at 284. This Court explained that there is a sufficiently imminent injury in fact if plaintiffs allege [1] an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and [2] there exists a credible threat of prosecution thereunder. Id. at 288 (quoting Babbitt v. Farm Workers Nat l Union, 442 14
USCA4 Appeal: 17-2002 Doc: 87 Filed: 01/07/2019 Pg: 15 of 46 U.S. 289, 298 (1979)). The Kenny plaintiffs satisfied the first prong because they attend school and attending school inevitably involves expressive conduct that implicates the disorderly conduct statutes. Id. As to the second element whether the students alleged a credible threat of future enforcement we held that such a threat exists so long as it is not imaginary or wholly speculative, chimerical, or wholly conjectural. Id. (internal quotation marks, citations, and alterations omitted). [P]ast enforcement against the same conduct is good evidence that the threat of enforcement is not chimerical. Id. (quoting Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334, 2345 (2014)). Threat of prosecution is especially credible when defendants have not disavowed enforcement if plaintiffs engage in similar conduct in the future. Id. (quoting Driehaus, 134 S. Ct. at 2345). Applying this standard, we held that the plaintiffs alleged a credible threat of enforcement because these three plaintiffs regularly attend schools where they allege there may be future encounters with school resource officers or other law enforcement; they have been prosecuted under the laws in the past; and the defendants have not disavowed enforcement if plaintiffs engage in similar conduct in the future. Id. at 289. Under Kenny, Davison s evidence established his standing to obtain prospective declaratory relief. Relevant to the first prong whether Davison intends to engage in a course of conduct arguably impacted by the challenged conduct, Babbitt, 442 U.S. at 298 the district court found, in awarding Davison declaratory relief, that he continues to avail himself of the Chair s Facebook Page and that Davison is active in local politics, and has a particular interest in what he believes to be corruption on the part of Loudoun County s school board. Davison, 267 F. Supp. 3d at 707, 723. Accordingly, 15
USCA4 Appeal: 17-2002 Doc: 87 Filed: 01/07/2019 Pg: 16 of 46 the evidence establishes that Davison continues to engage in a course of conduct namely, posting about alleged municipal corruption on the Chair s Facebook Page likely to be impacted by Randall s allegedly unconstitutional approach to managing the page. Turning to the second prong whether there is a credible threat of enforcement Randall previously blocked Davison from the Chair s Facebook Page based on the content of his posts, providing good evidence that the threat of enforcement is not chimerical. Driehaus, 134 S. Ct. at 2345 (internal quotation marks omitted). Additionally, Randall testified that she continues to believe she can ban Davison and others from the Chair s Facebook Page based on their views without triggering the First Amendment at all. See J.A. 277 (Randall stating she would be happy to ban other commenters on her Chair s Facebook page); J.A. 250 (Randall testifying that comments attacking another person would not be allowed on her Chair s Facebook page). To that end, in awarding Davison declaratory relief, the district court found that Randall maintains she is permitted to administer this Facebook page as a purely personal page. Davison, 267 F. Supp. 3d at 723. Accordingly, Davison established that he has been subject to past enforcement and that Randall has not disavowed future enforcement, which, under Kenny, is sufficient to establish a credible threat of enforcement. Cf. City of Lakewood v. Plain Dealer Pub. Co., 486 U.S. 750, 757 (1988) ( [T]he mere existence of the licensor s unfettered discretion, coupled with the power of prior restraint, intimidates parties into censoring their own speech, even if the discretion and power are never actually abused. ). 16
USCA4 Appeal: 17-2002 Doc: 87 Filed: 01/07/2019 Pg: 17 of 46 In sum, Davison s evidence demonstrated and the district court found that Davison intends to continue to use the Chair s Facebook Page and that Davison faces a credible threat of future enforcement. See Davison, 267 F. Supp. 3d at 723. Accordingly, Davison adduced facts establishing an injury in fact sufficient to justify the prospective declaratory relief awarded by the district court. B. Next, Randall asserts that the district court erred in concluding, with regard to Davison s individual capacity First Amendment claim, that Randall acted under color of state law, as that phrase is used in Section 1983, in administering the Chair s Facebook Page and banning Davison from that page. This Court reviews judgments stemming from a bench trial under a mixed standard: factual findings are reviewed for clear error, whereas conclusions of law are reviewed de novo. Helton v. AT&T Inc., 709 F.3d 343, 350 (4th Cir. 2013). Whether, under the undisputed facts, Randall acted under color of state law is a legal question this Court reviews de novo. Rossignol v. Voorhaar, 316 F.3d 516, 523 (4th Cir. 2003). To state a claim under Section 1983, a plaintiff must show that the alleged constitutional deprivation at issue occurred because of action taken by the defendant under color of... state law. Philips v. Pitt Cty. Mem l Hosp., 572 F.3d 176, 180 (4th Cir. 2009). The traditional definition of acting under color of state law requires that the defendant in a 1983 action have exercised power possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law. West v. Atkins, 487 U.S. 42, 49 (1988) (quoting United States v. Classic, 313 U.S. 299, 17
USCA4 Appeal: 17-2002 Doc: 87 Filed: 01/07/2019 Pg: 18 of 46 326 (1941)). Section 1983 s color-of-law prerequisite is synonymous with the more familiar state-action requirement applicable to Fourteenth Amendment claims, and the analysis for each is identical. Pitt Cty. Mem l Hosp., 572 F.3d at 180. Both inquiries demand that the conduct allegedly causing the deprivation of a federal right be fairly attributable to the State. Holly v. Scott, 434 F.3d 287, 292 (4th Cir. 2006) (quoting Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 937 (1982)). [T]here is no specific formula for determining whether state action is present. Id. at 292 (internal quotation marks omitted). Rather, [w]hat is fairly attributable [to the state] i.e., what constitutes action under color of state law is a matter of normative judgment, and the criteria lack rigid simplicity. Id. (internal quotation marks omitted). Courts must examine the totality of the circumstances, id. (internal quotation marks omitted), to determine if the action at issue bore a sufficiently close nexus with the State to be fairly treated as that of the State itself, Rossignol, 316 F.3d at 525 (quoting Jackson v. Metro. Edison Co., 419 U.S. 345, 351 (1974)). Although no one factor is determinative, this Court has held that a defendant s purportedly private actions bear a sufficiently close nexus with the State to satisfy Section 1983 s color-of-law requirement when the defendant s challenged actions are linked to events which arose out of his official status. Id. at 524. When a defendant s status as a public official enabled [her] to execute [a challenged action] in a manner that private citizens never could have, then the action also is more likely to be treated as attributable to the state. Id. at 526; see also Martinez v. Colon, 54 F.3d 980, 986 (1st Cir. 1995) ( [S]ection 1983 is... implicated... [when] the conduct is such that the actor 18
USCA4 Appeal: 17-2002 Doc: 87 Filed: 01/07/2019 Pg: 19 of 46 could not have behaved in that way but for the authority of his office. ); Goldstein v. Chestnut Ridge Volunteer Fire Co., 218 F.3d 337, 343 (4th Cir. 2000) (holding that challenged conduct is more likely to amount to state action when the injury caused is aggravated in a unique way by the incidents of governmental authority (internal quotation marks omitted)). Likewise, an official s conduct is more likely to amount to state action when it occurs in the course of performing an actual or apparent duty of his office. Martinez, 54 F.3d at 986. And the challenged action of a defendant governmental official is likely to be treated as taken under color of law when the official use[d] the power and prestige of his state office to damage the plaintiff. Harris v. Harvey, 605 F.2d 330, 337 (7th Cir. 1979). In the context of an alleged First Amendment violation, in particular, this Court has found that a challenged action by a governmental official is fairly attributable to the state when the sole intention of the official in taking the action was to suppress speech critical of his conduct of official duties or fitness for public office. Rossignol, 316 F.3d at 524. Here, after thoroughly analyzing the totality of the circumstances surrounding Randall s creation and administration of the Chair s Facebook Page and banning of Davison from that page, the district court concluded that Randall acted under color of state law. Davison, 267 F. Supp. 3d at 723. We agree. Randall created and administered the Chair s Facebook Page to further her duties as a municipal official. She used the Chair s Facebook Page as a tool of governance, id. at 713: through the Chair s Facebook Page, Randall provides information to the public 19
USCA4 Appeal: 17-2002 Doc: 87 Filed: 01/07/2019 Pg: 20 of 46 about her and the Loudoun Board s official activities and solicits input from the public on policy issues she and the Loudoun Board confront. See supra Part I.A. For instance, Randall used the Chair s Facebook Page to inform the public about serious public safety events and to keep her constituents abreast of the County s response to a snowstorm and to coordinate snow removal activities. And, as the district court correctly emphasized, Randall swathe[d] the [Chair s Facebook Page] in the trappings of her office. Among other things, (1) the title of the page includes [Randall] s title; (2) the page is categorized as that of a government official; (3) the page lists as contact information [Randall] s official County email address and the telephone number of [Randall] s County office; (4) the page includes the web address of [Randall] s official County website; (5) many perhaps most of the posts are expressly addressed to Loudoun, [Randall] s constituents; (6) [Randall] has submitted posts on behalf of the [Loudoun Board] as a whole; (7) [Randall] has asked her constituents to use the [Chair s Facebook Page] as a channel for back and forth constituent conversations ; and (8) the content posted has a strong tendency toward matters related to [Randall] s office. Davison, 267 F. Supp. 3d at 714. A private citizen could not have created and used the Chair s Facebook Page in such a manner. Rossignol, 316 F.3d at 526. Put simply, Randall clothed the Chair s Facebook Page in the power and prestige of h[er] state office, Harris, 605 F.2d at 337, and created and administered the page to perform[] actual or apparent dut[ies] of h[er] office, Martinez, 54 F.3d at 986. Additionally, the specific actions giving rise to Davison s claim Randall s banning of Davison s Virginia SGP Page are linked to events which arose out of h[er] official status. Rossignol, 316 F.3d at 524. Randall s post to the Chair s Facebook Page that prompted Davison s comment informed the public about what happened at the 20
USCA4 Appeal: 17-2002 Doc: 87 Filed: 01/07/2019 Pg: 21 of 46 Loudoun Board and Loudoun County School Board s joint meeting. And Davison s comment also dealt with an issue related to that meeting and of significant public interest School Board members alleged conflicts of interest in approving financial transactions. That Randall s ban of Davison amounted to an effort to suppress speech critical of [such members ] conduct of [their] official duties or fitness for public office further reinforces that the ban was taken under color of state law. Id. at 525. Considering the totality of these circumstances, the district court correctly held that Randall acted under color of state law in banning Davison from the Chair s Facebook Page. C. Third, Randall argues that the district court erred in ruling in Davison s favor on his individual capacity First Amendment claim against Randall. Randall principally challenges the district court s conclusion that the Chair s Facebook Page constitutes a public forum under traditional First Amendment law. We review this legal question de novo. See Helton, 709 F.3d at 350. Under long-established First Amendment law, governmental entities are strictly limited in their ability to regulate private speech in public fora. Pleasant Grove City, Utah v. Summum, 555 U.S. 460, 469 (2009). The Supreme Court has recognized two categories of public fora: traditional public forums and limited (or designated) public forums. Am. Civil Liberties Union v. Mote, 423 F.3d 438, 443 (4th Cir. 2005). Traditional public forums such as streets, sidewalks, and parks have the characteristics of a public thoroughfare, a purpose that is compatible with expressive conduct, as well as a tradition and history of being used for expressive public conduct. 21
USCA4 Appeal: 17-2002 Doc: 87 Filed: 01/07/2019 Pg: 22 of 46 Id. Limited or designated forums are forums that are not traditionally public, but [that] the government has purposefully opened to the public, or some segment of the public, for expressive activity. Id. Accordingly, the hallmark of both types of public fora what renders the fora public is that the government has made the space available either by designation or long-standing custom for expressive public conduct or expressive activity, and the space is compatible with such activity. Id. Conversely, a non-public forum is one that has not traditionally been open to the public, where opening it to expressive conduct would somehow interfere with the objective use and purpose to which the property has been dedicated. Id. (quoting Warren v. Fairfax Cty., 196 F.3d 186, 190 91 (4th Cir. 1999)). Although neither the Supreme Court nor any Circuit has squarely addressed whether, and in what circumstances, a governmental social media page like the Chair s Facebook Page constitutes a public forum, 3 aspects of the Chair s Facebook Page bear the hallmarks of a public forum. Randall intentionally open[ed the public comment section of the Chair s Facebook Page] for public discourse, Cornelius v. NAACP Legal Defense & Educ. Fund, Inc., 473 U.S. 788, 802 (1985), inviting ANY Loudoun citizen 3 In addition to the court below, two other district courts have considered whether a government official s social media page constituted a public forum. Those courts reached conflicting results. Compare Morgan v. Bevin, 298 F. Supp. 3d 1003, 1010 (E.D. Ky. 2018) (holding that First Amendment forum analysis did not apply to restrictions on speech in the official Facebook and Twitter pages of the Governor of Kentucky), with Knight First Amend. Inst. at Colum. Univ. v. Trump, 302 F. Supp. 3d 541, 573 (S.D.N.Y. 2018) (holding that the interactive component of the President s Twitter account, as opposed to the President s tweets themselves, constituted a designated public forum), appeal docketed, No. 18-1691 (2d Cir. Oct. 24, 2018). 22
USCA4 Appeal: 17-2002 Doc: 87 Filed: 01/07/2019 Pg: 23 of 46 to make posts to the comments section of the Chair s Facebook Page the interactive component of the page on ANY issues, request, criticism, complement or just your thoughts, J.A. 455. Randall placed no restrictions on the public s access to the page or use of the interactive component of the Chair s Facebook Page. And, in accordance with Randall s invitation, the public made numerous posts on matters of public concern. The Chair s Facebook Page also is compatib[le] with expressive activity. Cornelius, 473 U.S. at 802. Congress [has] recognized the internet and interactive computer services as offering a forum for a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity. Zeran v. Am. Online, Inc., 129 F.3d 327, 330 (4th Cir. 1997) (quoting 47 U.S.C. 230(a)(3)); cf. Bland, 730 F.3d at 386 (finding post to campaign Facebook page constituted pure speech ). And the Supreme Court recently analogized social media sites, like the Chair s Facebook Page, to traditional public forums, characterizing the internet as the most important place[] (in a spacial sense) for the exchange of views. Packingham v. North Carolina, 137 S. Ct. 1730, 1735 (2017). An exchange of views is precisely what Randall sought and what in fact transpired when she expressly invited ANY Loudoun citizen to visit the page and comment on ANY issues, and received numerous such posts and comments. J.A. 455. Randall nevertheless argues that traditional public forum analysis should not apply to the Chair s Facebook Page for two reasons: (1) the Chair s Facebook Page is a private website and therefore does not constitute public property susceptible to forum analysis, and (2) the Chair s Facebook Page, in its entirety, constitutes government 23
USCA4 Appeal: 17-2002 Doc: 87 Filed: 01/07/2019 Pg: 24 of 46 speech properly analyzed under the framework set forth in Pleasant Grove. Randall s Br. at 19 21, 29 31. We disagree. Even assuming the intangible space at issue is private property, as Randall claims which is not at all clear from the record before us 4 the Supreme Court never has circumscribed forum analysis solely to government-owned property. For example, in Cornelius, the Court recognized that forum analysis applies to private property dedicated to public use. Cornelius, 473 U.S. at 801 (emphasis added); see also Christian Legal Soc y Chapter of the Univ. of Cal. v. Martinez, 561 U.S. 661, 679 (2010) ( [T]his Court has employed forum analysis to determine when a governmental entity, in regulating property in its charge, may place limitations on speech. (emphasis added)). 4 The Facebook platform and the software that underlies that platform is, according to Facebook s Terms of Service, property of Facebook, Inc. Terms of Service, Facebook, https://www.facebook.com/terms.php (last visited Jan. 4, 2019). Facebook s Terms of Service further provide that users own the content [they] create and share on Facebook and the other Facebook Products, including Pages. Id. There would seem to be a good argument, therefore, that content created, and posted to Facebook, by government officials performing the functions and duties of their offices constitutes government property. Cf. Solomons v. United States, 137 U.S. 342, 346 48 (1890) (holding that intellectual property created by government employee in the course of his official duties constituted government property because [i]f one is employed to devise or perfect an instrument, or a means for accomplishing a prescribed result, he cannot, after successfully accomplishing the work for which he was employed, plead title thereto as against his employer ). Likewise, under Facebook s Terms of Service, the posts and comments by individual Facebook users like Davison to a Facebook Page like the Chair s Facebook Page constitute property of those users. Accordingly, a single Facebook Page including the Chair s Facebook Page encompasses a web of property rights, some of which may lie with the government. We need not and thus do not decide with whom these property rights lie in this particular case, however, because we hold that even assuming the Chair s Facebook Page constitutes private property, Randall, acting under color of state law, exercised control over the aspects of that page giving rise to Davison s claim. 24
USCA4 Appeal: 17-2002 Doc: 87 Filed: 01/07/2019 Pg: 25 of 46 And the Supreme Court and lower courts have held that private property, whether tangible or intangible, constituted a public forum when, for example, the government retained substantial control over the property under regulation or by contract. See, e.g., Se. Promotions, Ltd. v. Conrad, 420 U.S. 546, 547, 555 (1975) (holding that a privately owned Chattanooga theater under long-term lease to the city was a public forum[] designed for and dedicated to expressive activities ); Halleck v. Manhattan Community Access Corp., 882 F.3d 300, 306 07 (2d Cir. 2018) (holding that public access television channels operated by a private non-profit corporation constituted public forums), cert. granted 139 S. Ct. 360 (2018) (mem.); First Unitarian Church of Salt Lake City v. Salt Lake City Corp., 308 F.3d 1114, 1122 (10th Cir. 2002) ( [F]orum analysis does not require that the government have a possessory interest in or title to the underlying land. Either government ownership or regulation is sufficient for a First Amendment forum of some kind to exist. ); Freedom from Religion Foundation, Inc. v. City of Marshfield, Wis., 203 F.3d 487, 494 (7th Cir. 2000) (holding that private property abutted by public park constituted public forum). Significantly, even assuming the relevant aspects of the Chair s Facebook Page constitute private property which, again, is not entirely clear from the record before us Randall, acting under color of state law, retained and exercised significant control over the page. She created the Chair s Facebook Page. She designated the page as belonging to a governmental official. She clothed the page in the trappings of her public office. She chose to list her official contact information on the page. And she 25
USCA4 Appeal: 17-2002 Doc: 87 Filed: 01/07/2019 Pg: 26 of 46 curated the links in the left column of the page and the lists of Facebook Pages or profiles liked by the Chair s Facebook Page in the right column. Of particular importance, Randall had complete control over the aspect of the Chair s Facebook Page giving rise to Davison s challenge because, as administrator of the page, Randall had authority to ban Facebook profiles or Pages from using the Chair s Facebook Page and, therefore, the interactive component of the page authority she exercised in banning Davison s Virginia SGP Page. Cf. Knight, 302 F. Supp. 3d at 566 67 (holding that the interactive component of the President s Twitter account constituted public forum because the President and his advisors exercise control over various aspects of the... account, including the power to block other users from accessing the account). The Second Circuit s decision in Halleck dealing with privately operated public access television channels is instructive. Federal law allows cable franchising authorities to require cable operators to designate channel capacity for public use. Halleck, 882 F.3d at 302. Likewise, New York regulations oblige cable operators to designate at least one channel for full-time public use. Id. Pursuant to that authority, the City of New York entered into a cable franchise agreement with a cable company requiring the company to make available four public access channels, which channels were operated by a private, non-profit corporation, MNN. Id. Several producers of public access programming sued MNN, alleging that MNN violated the producers First Amendment rights by indefinitely suspending them from using the public access channels because of disapproval of the content of a TV program they had submitted for airing. Id. 26
USCA4 Appeal: 17-2002 Doc: 87 Filed: 01/07/2019 Pg: 27 of 46 The Second Circuit concluded that the public access channels constituted a public forum, notwithstanding that they were operated by a private company. Id. at 306 08. The court reached that conclusion for two reasons. First, it pointed to the similarities between public access channels and traditional public forums, like parks, describing [a] public access channel [a]s the electronic version of the public square. Id. at 306. Second, the court emphasized the extensive government involvement with, and control over, public access channels by virtue of the federal and state regulatory schemes. See id. ( [W]here, as here, federal law authorizes setting aside channels to be the electronic marketplace of ideas, state regulation requires cable operators to provide at least one public access channel, a municipal contract requires a cable operator to provide four such channels, and a municipal official has designated a private corporation to run those channels, those channels are public forums. (emphasis added)). Although not subject to the extensive federal and state regulatory regime applicable in Halleck, 5 the Chair s Facebook Page is in many ways analogous to the privately-operated public access channels considered by the Second Circuit. Just as the federal government sought to establish an electronic marketplace of ideas by mandating provision of public access channels, Randall expressly sought to and did, in 5 The federal Communications Decency Act allows private online intermediaries, like Facebook, the ability to moderate content by providing such intermediaries with broad immunity from user-generated content posted on their sites. 47 U.S.C. 230. This Court has recognized that an important purpose of 230 was to encourage service providers to self-regulate the dissemination of offensive material over their services. Zeran, 129 F.3d at 331. 27
USCA4 Appeal: 17-2002 Doc: 87 Filed: 01/07/2019 Pg: 28 of 46 fact create an electronic marketplace of ideas by inviting ANY constituent to post to the Chair Page on ANY issues. J.A. 455. Likewise, just as the City of New York chose to have a private corporation operate the public access channels, Randall chose to create her electronic marketplace of ideas, the Chair s Facebook Page, on a private platform, Facebook. Indeed, the present case provides a stronger basis for treating the interactive component of the Chair s Facebook Page as a public forum because whereas the private corporation in Halleck, MNN, exercised control over the aspect of the public access channel giving rise to the First Amendment claim banning the public access program producer a public official, Randall exercised unconstrained control over the aspect of the Chair s Facebook Page giving rise to Davison s claim banning of other Facebook profiles and Pages. 6 6 On October 12, 2018, the Supreme Court granted MNN s petition for writ of certiorari in Halleck. 139 S. Ct. 360. MNN s petition presented two questions: (1) [w]hether the Second Circuit erred in rejecting th[e Supreme] Court s state actor tests and instead creating a per se rule that private operators of public access channels are state actors subject to constitutional liability and (2) [w]hether the Second Circuit erred in holding contrary to the Sixth and D.C. Circuits that private entities operating public access televisions stations are state actors for constitutional purposes where the state has no control over the private entity s board or operations. Petition for Writ of Certiorari i, Manhattan Community Access Corp. v. Halleck, --- S. Ct. --- (No. 17-1702). MNN s argument before the Supreme Court, therefore, focuses on the Second Circuit s determination that MNN constituted a state actor, not the court s determination that the public access channels constituted a public forum. Although not identified as an issue on appeal, MNN s petition also took issue with the Second Circuit s determination that the public access channels operated by MNN constituted a public forum. But that contention was entirely derivative of its state action argument. In particular, MNN objected to the Second Circuit s public forum conclusion only because the public access channels were privately operated and because, in its opinion, the Second Circuit s purportedly categorical holding that public access (Continued) 28